COMMONWEALTH v. HAYNES (06/11/70)

Appeal from order of Court of Common Pleas of Delaware County, March T., 1969, No. 598, in case of Commonwealth of Pennsylvania v. Horace Haynes.

COUNSEL

Ralph B. D'Iorio, Assistant District Attorney, with him Vram Nedurian, Jr. and John R. Graham, Assistant District Attorneys, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.

This is an appeal by the Commonwealth from the decision of the Court of Common Pleas of Delaware County suppressing evidence. The defendant-appellee, Horace Haynes, was arrested on November 19, 1968, charged with Traffic in Lottery Tickets, in violation of The Penal Code of 1939, P. L. 872, § 601 and § 602, 18 P.S. § 4601 and § 4602. The defendant filed a petition to suppress the evidence, namely numbers slips, obtained at the time of the arrest, on the ground that the search warrant was illegal. The court suppressed the evidence and the Commonwealth appealed.

The record indicates that three state troopers were sworn before the justice of the peace that issued the warrant. The complaints for the warrant were reduced to writing and signed by Sergeant McKenna after Trooper Kardash had testified, under oath, as to the particulars of their investigation which led to the request for the warrant.

The Affidavit reads as follows: "Tprs. Metro Kardash & James Palya received information (confidential) that a colored male was a pickup man for a numbers operation in the city of Chester, operating a Light Blue Dodge, who makes regular pickups in the area of Front & Concord St., Chester, Penna. This information was received from a confidential informant who

[ 218 Pa. Super. Page 15]

has given these officers information of this type in the past, which has proven true and correct, from which convictions have resulted."

It is now well established that sworn oral testimony may be considered along with the facts reduced to writing presented to the magistrate to justify a finding of probable cause. Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967), and Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966).

The following facts were presented to the justice of the peace in the testimony of the officer: the police had received information from an informant, not disclosed; the informant told them that a man in a Blue Dodge had taken over the numbers route which was vacated by a man named Saunders who had been arrested for numbers; as a result of this information, the police spotted the Blue Dodge, licensed IM 9029; a check of the license proved that it was issued to the defendant, Horace Haynes; the car was placed under surveillance and it was first seen at the Penn Casting Company plant in Chester at 1 p.m.: a man, by the name of Fontaine, also under investigation for gambling, was seen coming out of the factory and he handed a package to Haynes; the operator was followed as he made various stops and pickups similar to the stops and pickups made by Saunders; six such stops and pickups were made; the informant in this case was the same one who had informed in the Saunders' case in which the information proved accurate; he had described the same route and the same activity in both cases; the ...

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